4.04.25 Decedent's Estate

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Montana Code Annotated ("MCA") entitled 72-2-116 "Representation" includes several definitions unique to Montano. It also includes the Montana Inheritance Scheme or plan which provides how and to whom an intestate estate passes.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

Three (3) years: MCA 72-3-122, except where will previously probated elsewhere. None for intestate, although a personal representative cannot be appointed after 3 years. The result is a determination of heirship on intestacy.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Dower and curtesy abolished: MCA 72-2-122.

Disposition of land held under Community Property laws of another state: MCA 72-9-101, et seq.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes, see MCA 70-20-310, 70-1-307, 7-4-2613. (Documents Subject to Recording.) The county clerk shall, upon the payment of the appropriate fees, record a document on a form provided by the department of revenue certifying that the holder of a nonprobate interest in real property is deceased and that the deceased's interest is terminated. A nonprobate interest in real property is a joint tenancy interest, a life estate interest, or any other interest not requiring probate. The document may be on the form used by the department of revenue for responding to the application for determination of inheritance or estate tax. It must contain:

  • a statement that the holder of the nonprobate interest has died and that the holder's interest in the property is terminated;

  • a certification by the county treasurer that the inheritance or estate tax, if any tax was due, has been paid or that inheritance or estate tax was not due; and

  • a description of the property.

  • MCA 7-4-2619: County Clerk and Recorders are not required to issue "transfers of title" to survivors of a joint tenancy interest. Rather, upon filing of the application and certificates (form INH-3), the Clerk should index the transfer in the grantor and grantee index, noting the time and place of filing. 37 A.G. Op. 134 (1978).

  • MCA 72-16-503: Additional filings required when real property involved and no representative Release of Inheritance Tax Lien. When an interest is held in joint tenancy, the surviving joint tenant must file with the County Clerk a document containing those matters required by MCA 7-4-2613(3), except when the surviving joint tenant is a surviving spouse. The surviving spouse must file an acknowledged statement that the holders interest is non probated and such party has died and their interest thereby terminated. The recording of these documents constitute a release of any lien for inheritance taxes.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Elective share: MCA 72-2-221. Homestead MCA 72-2-402. Family Allowance: MCA 72-2-414.

Summarize the steps required for a testate administration. Provide statutory citations.

Formal Probate Procedure found in MCA 72-3-301, Supervised Probate Procedure found in MCA 72-3-401 and Informal Probate Procedure found in MCA 72-3-201, all et seq. Summary:

  • Application process
  • Petition for Letters
  • Will Admitted to Probate
  • Creditors Claims
  • Distribution
  • Closing

Summarize the steps required for an intestate administration. Provide statutory citations.

Same as above, except for will admitted to probate. Finding of intestacy and determination of representation found in MCA 72-2-111, et seq.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

Some attorneys are occasionally use an affidavit of heirship as a vehicle to avoid probate. The Company has not endorsed this practice.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

No.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

MCA 72-1-111 concerning remedies for fraud in probate provides for a statute of limitation of 2 years after discovery, but not longer than 5 years from time of commission of fraud.

Does your state provide for an "inheritance" tax?

Yes: MCA 72-16-101, et seq.

If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

MCA 72-16-308: It is bassed on clear market value of the property transferred by decedent or his estate within 3 years prior to the date of death where less than a full adequate consideration was paid.

Does your state provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien.

Yes, MCA 72-16-432.

MCA 72-16-218: County Clerk is furnished with list of all decedents within prior 3 years. Clerk checks for ownership of any lands within the county and reports back to Dept of Revenue.

MCA 72-16-401: Any personal representative or other interested person may make application to the Dept of Revenue for a determination of inheritance taxes.

MCA 72-16-423: Court order to be delivered and taxes paid before final judgment in estate. Dept of Revenue furnishes proof of payment of the tax which is filed in the estate.

Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

MCA 72-16-432: All property affected by the death of the decedent on which such taxes are due is subject to a lien until such taxes have been paid. Such lien remains for 10 years from the date of death. A warrant of distraint is issued by the Dept of Revenue.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Record letters of administration

Record any order of sale under supervised or formal estate proceeding

Record Deed

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

MCA 72-3-613: yes, if the estate is unsupervised or informal.

See MCA 72-3-613 for requirements and limitations.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

MCA 72-3-613: When the estate is Formal or Supervised:

  • Record letters of administration
  • Record order of sale
  • Record deed

Does your state provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

MCA 72-4-101, et seq. Generally the procedure is one of filing the appropriate documents with the Clerk of the Montana Court: upon approval, the Clerk certifies a copy for recordation. Thereafter the foreign personal representative sells or disposes of the lands pursuant to the will, decree of distribution, etc.